MDI Mainer

1. Fairey's elaborate effort to conceal his source certainly suggests guilty knowledge. And he did plead guilty to this Criminal Information, http://www.justice.gov/usao/nys/pressreleases/February12/fairey/faireyshepardinformation.pdf ,and was sentenced to two years of probation for committing criminal contempt of court in connection with the AP copyright litigation; ordered to complete 300 hours of community service; and ordered to pay a $25,000 fine. http://www.forbes.com/sites/billsinger/2012/09/07/obama-hope-and-progress-photo-ends-with-artists-criminal-plea/ So I would not hold him up as a model for others on this site.

2. Your last comment is not representative of most lawyers' experience with bench comments from US District Court judges.

artBob Loc: Near Chicago

Some examples:

amehta Loc: Boston

Thanks. That was on the first page of the google search, but I wasn't sure that it was what you were referring to.

sirlensalot Loc: Arizona

I would think if not sure when the photo was taken, why put so many at risk by taking it?
There have been some good answers, but I do not think enough facts by the OP have been shared to provide clear answers and/or opinions to the question.

amehta Loc: Boston

I think some of us are convincing the OP to not take the picture.

Woodie Rick

Cool. Again, the case was not resolved through our court system. Until a similar case goes all the way up, the 'Fair Use' issue remains open. U pick the court, they often decide differently. And, each and every case is different...

Woodie Rick

This looks like fun. If I take a picture of a building, or its front door, and it turns out that someone else has also taken a photo from the same angle of the same door or building, am I violating the other photographer's copyright? Whoa! I don't think so. How about that church door in Taos, NM? How about Half Dome in Yosemite? How about the Capitol in Washington D.C.? Washington monument? Give me a break! You cannot copyright an entry way or a mountain or a capitol building.
Besides,
If I use film, I have my original negative---my negative! If I use digital, there is a technical, identifiable difference. Can be shown in court. Is there a pending lawsuit on this issue?

amehta Loc: Boston

I think it depends on whether you are simply taking the picture you want to take, or if you are holding the picture you want to "copy" and figuring out how to take the exact same shot.

Woodie Rick

No, I do not think it does matter.

MDI Mainer

Some further reasources for those interested:

http://99designs.com/designer-blog/2013/04/19/5-famous-copyright-infringement-cases/

http://www.photoattorney.com/photographer-awarded-summary-judgment-for-copyright-infringment/

http://www.imagerights.com/

joealdrich Loc: Texas

Thanks for the info on derivative works in photography - it's completely different for published music, obviously.

This may seem like a trivial question, but how do museums "get away with" publishing derivative works of the art in their collections with the fancy coffee table photo albums on sale in every gift shop?
When an original work of art is SOLD - doesn't every right go with it? If a museum owns the work, I can see where they could control photos, publication, etc. and freely use images of the artwork as they see fit, and protect their rights from infringement.

In the case of borrowed works, or those of a living artist, are there various "rights" and/or obligations held by the artist as well as the museum, like photo reproduction & merchandising (remember the King Tut stuff)? My guess is that all those things are determined in a contract prior to placing the exhibit on display, subject to some limited use assignments of rights.

And finally, do photos of (outdoor, public) sculpture constitute derivative works? I can see the argument inapplicable since no plane image of the 3D structure is substantially representative of the structure itself. I can also see that a derivative work from a photo of sculpture might be the same type of infringement on the rights of the photographer as the original question here.

This brings to question of how/if photographic reproduction may infringe on the rights of the owner of the sculpture, and would there be any effect on the rights of the artist/sculptor?

sirlensalot Loc: Arizona

So what happens to a copyright if / when the copyright holder dies? Does it automatically become property of his/her estate?
What if their is no will or estate? Anyone know?

amehta Loc: Boston

Yes, and for quite a while (50-75 years, I believe).

sirlensalot Loc: Arizona

Even without an estate? Wondering if a family member can sue for infringement on behalf of the copyright holder even outside of the estate, assuming their was none? So, that would mean the copyright remains under the protection of the government that issued the copyright regardless of circumstances until the expiration of the copyright.
Thinking I should have switched to decaf this morning.

Woodie Rick

Copyrights are now for the author's lifetime plus fifty years. The legal heirs of the author have claim to the copyright for that fifty years, but how and who determines 'the rightful heirs' is most often a complex question determined by the courts. Sometimes there are no legal heirs. In that case, there (probably?) would be no one to challenge the use of the artwork by a 'non heir.' One must attempt 'due diligence' to find out if there is a copyright and if there is an heir for any given old art piece. Also, I understand that even without a formal legal copyright, an author of a work still has ownership and can make trouble if someone uses their work without authorization, it follows that a legal heir could also hassle you even without a copyright on the piece. If you are going to use someone else's work, do the due diligence, give them credit if you can find their name, contact them if you can before publishing the work. None of this really matters if you are just going to put up a photo that was done by another on your living room wall, it matters if you publish their work or use it commercially---like the ship picture that started this whole thing: an ad for 'Joe's Seaworthy Ships' using the altered ship picture would probably make for trouble. That's pretty simple.